Applicant clearly states to physicians he is able to carry on normal life - JT v RBC Insurance Company, 2018 CanLII 95566 (ON LAT 17-005328)

January 18, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

JT v RBC Insurance Company, 2018 CanLII 95566 (ON LAT 17-005328)

Date of Decision: April 6, 2018
Heard Before: Adjudicator Robert Watt

NON-EARNER BENEFIT (NEB): Schedule requires a complete inability to carry on a normal life, as a result of and within 104 weeks after the accident for NEBs; applicant states he is able to carry on his normal activities to both IE physicians; family doctor does not provide evidence to support claims of inability to carry on normal life

JT was 72 years old when he was injured in a car accident April 9, 2016. His car was hit on the driver’s side by another car. He went to the doctor two days after the accident with decreased range of motion, neck pain, and pain in the lower back area, which radiated down his left leg. He had been retired at the time of the accident. He sought benefits from RBC pursuant to the SABs. When RBC denied benefits JT applied to the LAT for resolution.

Issues:

1. Is JT entitled to receive NEBs in the amount of $185.00 per week from October 9, 2016, and onwards?
2. Is JT entitled to interest on any overdue payment of benefits?
3. Is the respondent entitled to costs of the written hearing?

Result:

1. JT is not entitled to receive NEBs in the amount of $185.00 per week, from October 9, 2016, and onwards.
2. JT is not entitled to interest as there are no overdue payments owing by the respondent.
3. There are no costs ordered for the written hearing.
    

JT has a history of longstanding depression over the past 20 years, and had also fallen a week before the accident. He attended on April 25, 2016 at the Mackenzie Medical Rehabilitation Centre. Inc. and reported that he had returned to activities of daily living. On October 21, 2016, JT attended an insurer’s examination (IE) under Section 44 of the Schedule and indicated to the doctor that he “is able to perform his personal care independently with the exception of bathing.” JT saw a neuropsychologist on a section 44 IE on November 3, 2016, and discussed the activities that he engaged in prior to and after the motor vehicle accident. JT indicated that pre- accident, he drove regularly, enjoyed watching soccer, attended church once a week, and participated in family activities with his wife. He also indicated that he, after the accident, continues to drive, be a big soccer fan, attends church as before and participates in all other activities in the same fashion as before, with no limitations or restrictions.

Both specialists opined in their reports that JT does not suffer a complete inability to carry on a normal life. Dr. West also indicated that JT did not report that he suffered a complete inability to carry on a normal life.

JT’s family physician indicated that JT “has severe inability to function and carry out his regular day to day activities. He is unable to carry social, at times self- care, recreational and housekeeping tasks.” The doctor gave no details on what she based her conclusions.

ANALYSIS

The Adjudicator reviewed the Schedule and noted an insurer is required to pay NEBs to an insured who sustains an impairment as a result of an accident, if the insured suffers a complete inability to carry on a normal life, as a result of and within 104 weeks after the accident. The courts have held that an insured must sustain an impairment that continuously prevents him or her from engaging in substantially all of the activities in which they ordinarily engaged in before the accident.

On review of the medical evidence submitted the Adjudicator noted that JT reported to both IE physicians that he is able to continue all his pre- accident activities after the accident, and is therefore not suffering a continuous complete inability to carry on a normal life.

The Adjudicator preferred the the medical reports of the IE doctors whose reports provide greater details as to JT’s pre and post- accident activities.

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.